The eyes of many churches, schools, and other religious organizations are on the Supreme Court this morning. The Court hears arguments today in the case Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which deals with issues related to church autonomy, the free exercise of religion, and the validity of the “ministerial exception” principle that partially shields religious organizations from employment discrimation lawsuits.
At front and center is Douglas Laycock, a University of Virginia law professor and leading expert on religious liberty in the United States, who will argue on behalf of Hosanna-Tabor Evangelical Lutheran Church and School. In this excerpt from the introduction to his recent book Religious Liberty, Volume 2: The Free Exercise Clause, Laycock briefly describes how legal interpretation of the Constitution’s Free Exercise Clause has changed over the last four decades.
The largest portion of my work has been devoted to the free exercise of religion. Free exercise is in my view the most fundamental of the guarantees of religious liberty; these are disputes about whether people can be jailed, fined, or otherwise penalized for practicing their religion — in the United States. In a nation of enormous religious pluralism and pervasive regulation, there is a remarkable variety of conflicts between religious practices and government regulation.
Religious practices that harm others can of course be regulated, although this broad statement requires further specification of what counts as a harm for this purpose. Governments often prohibit religious practices when the only harm is annoyance or modest inconvenience. In my view, harm must pass some threshold of significance to justify suppression of a First Amendment right.
The modern law pertaining to the free exercise of religion — the law since 1963 — may be divided into two periods. From 1963 to 1990, the Supreme Court said that if a law burdened a sincere religious practice, the government must either exempt the religious practice from regulation or prove that the burden on religion is the least restrictive means to achieve a compelling governmental interest. The enforcement of this right was not always vigorous, but the Court’s announced standard was highly protective, and sometimes the courts adhered to that standard.
In 1990, in a case called Employment Division v. Smith, the Court changed the standard. The Court said that if a law is neutral and generally applicable, it can be applied to prohibit a religious practice — even to prohibit a worship service — without any evidence of any governmental need to burden religion. Whether to exempt religious practices from such a law is exclusively a question for the legislature, not subject to judicial review. But if the law that burdens religion is not neutral, or not generally applicable, then the compelling interest test applies as before. The Court did not mention least restrictive means. Nearly all the law of free exercise of religion since 1990 is a response to Employment Division v. Smith.
Part One of this volume addresses the general question of whether, and to what extent, the Free Exercise Clause sometimes requires exemptions from regulation. It is divided into two Sections, before Smith and after Smith. It includes a major scholarly treatment of Smith, and it includes briefs and oral argument from the only Supreme Court case (as of 2009) that casts any light on what Smith
Part Two addresses the right to church autonomy — the right of a church to manage its own internal affairs, whether or not any moral or doctrinal tenet is at stake in the government’s interference. It is divided into five subsections, addressing the general theory and a variety of important applications. It contains scholarly articles, briefs from important cases, and legislative correspondence.
Part Three addresses the rights of non-mainstream religions of all sorts — groups such as the Hare Krishnas, the Metropolitan Community Church, Scientology, and Ethical Culture. There are four amicus briefs.
These issues are also treated in many of the overview articles in Volume 1. Specific cross-references are in the introductions to sections and subsections.
Click here to order Douglas Laycock’s Religious Liberty, Volume 1: Overviews and History and Volume 2: The Free Exercise Clause.